By Paola Betelli
- There are some prospects for peace in Ukraine
In the current circumstances, the prospects for peace seem slim, but they may have improved with the recent visit of the seven African leaders, led by Cyril Ramaphosa, because they approached the parties with respect, impartiality and a willingness to listen, while also setting forth some good starting points for discussion, including adherence to the rule of law and the UN Charter, respect for the sovereignty and self-determination of states, guarantees of security for all parties, facilitation of humanitarian assistance, return of children and prisoners of war, de-escalation of the conflict and reconstruction.
Notably, both Volodymyr Zelensky and Vladimir Putin were willing to host the African delegation. While Putin openly stated his willingness to negotiate, Zelenskyy made it clear that unless all land currently occupied by Russia was returned, there was no starting point for negotiations. Nonetheless, both leaders expressed their willingness to continue to work with the African delegation, which opens the avenue for discussion, something that had not happened beforehand.
The main messages of the African leaders were that the war cannot go on forever, and that it must be settled through negotiations and diplomatic means. The violence and suffering must come to end, as well as the negative impacts of the war on many other countries, including African ones.
2. The United Nations Charter, the rule of law and due process as bases for lasting peace
The African peace initiative sets into motion a process for the airing of grievances and rapprochement between the parties that, if successful, could lead to the de-escalation of the conflict, the beginning of peace talks and, hopefully, the cessation of hostilities.
Because the African initiative is in close alignment with the principles and purposes set in the UN Charter, with processes for peace established by the Charter and with due process and the rule of law, it has a good foundation for success.
a. The United Nations Charter
The main principles of the UN Charter include saving succeeding generations from the scourge of war, reaffirming faith in fundamental human rights, and establishing conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained. To this end, the Charter established the UN Security Council which is the main body charged with peace and security. However, in Article 1, the UN as a whole, is mandated to
“…. maintain international peace and security, and to that end: take effective measures for the prevention and removal of threats to peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international situations which might lead to a breach of peace.”
To this end, Article 2 states that the Organization and its members shall, inter alia, settle international disputes by peaceful means in such a manner that international peace and security, and justice are not endangered, and members shall refrain from the threat or use of force against the territorial integrity or political independence of any state.
Despite the current stalemate of the Security Council on the Russia-Ukraine war, Article 10 provides that the General Assembly (GA) may discuss any questions relating to the maintenance of international peace and security brought before it by any Member of the United Nations. Additionally, under Article 14, the GA may recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations.
Under such UN Charter provisions, in March of 2022 the GA met in an Emergency Session, as provided for in resolution 377 (V) on Uniting for Peace as follows:
When there is a lack of unanimity of the permanent members of the Security Council and, as a result of it the Council fails to exercise its primary responsibility for the maintenance of international peace and security, the GA shall consider the matter immediately with a view to making immediate recommendations.
Thus far the GA has issued six resolutions on Ukraine convening in an emergency session and made recommendations, including by urging the immediate peaceful resolution of the conflict. The last resolution (ES-11/6) underscored the need to reach, as soon as possible, a comprehensive, just and lasting peace in Ukraine in line with the principles of the UN Charter.
b. Rule of law and due process
Under the UN Charter and principles of international law, States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State or in any manner inconsistent with the purposes of the United Nations Charter.
In line with this, under Article 33, the parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration judicial settlement, resort to regional agencies or arrangements, of other peaceful means of their own choice.
Hence, under international law, the peaceful settlement of disputes is paramount, and a number of options have been specified to this end by the UN Charter ranging from an enquiry and negotiation to a judicial settlement.
In order to uphold this principle, all members of the United Nations, the parties to a conflict and the Organization itself should facilitate the immediate peaceful settlement of a dispute instead of enabling its continuation.
The peaceful settlement of a dispute does not mean that accountability for war crimes or the crime of aggression will be forgone, nor that the territorial integrity or self-determination of nations disregarded. Rather, settling a dispute according to international law involves a step-by-step approach and due process whereby the parties air their grievances and claims before an impartial entity with authority to hear and settle the case. Hence, due process underpins the legitimacy of the Organization and adherence to the normative framework of the international system.
Due process is best defined in one word: fairness. An essential question is whether the parties had an opportunity to be heard. Thus, due process entails a fair hearing before an impartial entity with authority to decide the case. There are many components of due process, including providing each of the parties with an opportunity to state their claims, present defenses to the other party’s claims and lay out the facts and evidence that support their claims and defenses.
Due process is supported by the general principles of law as recognized by civilized nations and reflected in the statutes of the International Court of Justice and the International Criminal Court.
Due process is also applicable to the non-judicial settlement of disputes through mediation, arbitration and conciliation. Therefore, due process is also applicable to the international settlement of disputes as provided for by the UN Charter and should entail equal rights for both parties.
Because due process ensures the legitimacy of the Organization and its role in settling a dispute, it is very effective in terms of building trust among nations and on a rules-based system. International cooperation is predicated on trust. Hence, while international law, including the UN Charter, provides the substantive framework that underpins good relations among nations, due process ensures that these norms are applied fairly.
Due process is necessary to garner support from a population so that its leaders be held accountable when their actions are in breach of international law because it is fair to do so. More broadly, and from a political perspective, shifting the political mindset of the population to be better aligned with the UN Charter and the principles of international law is a role that UN country teams could advance very effectively.
3. The role of the United Nations
The African peace initiative begins to set the foundations for due process for the eventual settlement of the dispute by providing both Ukraine and Russia with the opportunity to be heard. The impartial entity with authority to settle the dispute is yet to be determined, although, presumably it ought to be the United Nations through one of its bodies as mandated by the UN Charter and/or relevant international treaties.
Unfortunately, the African peace initiative was not pursued under the aegis of the United Nations, the only entity with international authority, except for regional mechanisms, to settle a dispute of this nature.
Hence, if the African peace initiative is to be successful, it ought to be brought under the realm of the United Nations, either through an invitation by the Secretary-General or the President of the General Assembly, or through a decision/resolution of the General Assembly or the Security Council. Hypothetically, another option would be for the case to be brought before the International Court of Justice or the International Criminal Court, but the issue of jurisdiction arises since neither Russia nor Ukraine are parties to these instruments.
In the alternative, and based on the African leaders’ initiative and proposals, either the Secretary-General or the General Assembly could appoint a Commission of Experts from the fields of international law, of peace and security, the management of displaced persons and of reconstruction. Tasked with gathering information on all disputed matters to the conflict, the Commission would offer potential compromise solutions to the parties for their consideration and recommendations for multilateral action to the General Assembly and, perhaps, eventually the Security Council. This Commission would be distinct from the Commission of Inquiry appointed by the Human Rights Council, which is focused on human rights violations.
Complimentary to this Commission of Experts, a Group of Eminent Women could be established whom could advocate for the cessation of hostilities and provide recommendations on humanitarian issues including the protection of women, children, the elderly the disabled and other people in conditions of vulnerability.
In this regard, ten Security Council resolutions form the foundation of the women, peace, and security agenda. Resolution 1325 (2000) affirms the importance of the participation of women and the inclusion of gender perspectives in peace negotiations, humanitarian planning, peacekeeping operations, and post-conflict peacebuilding and governance.
Resolution 2493 (2019) requests the UN to develop context-specific approaches for women’s participation in all UN-supported peace processes; and urges Member States to ensure and provide timely support for the full, equal, and meaningful participation of women in all stages of peace processes, including in the mechanisms set up to implement and monitor peace agreements.
4. The role of the Secretary-General including maintaining impartiality, providing good offices and facilitating political ripeness
Under Article 99 of the UN Charter the Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of peace and security. In addition to this, Article 100 requires the require the Secretary-General and the staff to not seek or receive instructions from any government or from any other authority external to the Organization.
Thus, in the dispensation of his duties, the UN Secretary-General is required to maintain impartiality and is authorized to bring any matter which may threaten the maintenance of international peace and security to the fore.
This would suggest that the UN Secretary-General, by virtue of these two provisions of the Charter, must maintain an impartial position with regard to any international dispute and ought to facilitate some form of peaceful resolution. “Hence, one of the most vital roles played by the Secretary-General is the use of their „good offices“ — steps taken publicly and in private, drawing upon their independence, impartiality, and integrity, to prevent international disputes from arising, escalating or spreading.” (See UN web page on the SG’s role)
The African leaders’ initiative and proposals seem to be stepping in for the Secretary-General in terms of providing “good offices” for the resolution of the Russia-Ukraine war. While the African initiative, as such, is a welcome one in terms of its potential to bring about a peaceful resolution, it ought to be taken up by the Secretary-General as well. Through his good offices, the SG could play a catalytical role in bringing about political ripeness for conflict resolution.
Indeed, “a Secretary-General would fail if they did not take careful account of the concerns of Member States, but they must also uphold the values and moral authority of the United Nations, and speak and act for peace, even at the risk, from time to time, of challenging or disagreeing with those same Member States.” (See UN web page on the SG’s role).
5. The need for a New Agenda for Peace
When the Security Council is not in agreement about acting on a given international dispute, such as is the case with the Russia-Ukraine war, the UN Charter enables the General Assembly to recommend peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations. The process, as described in Article 12 enables the General Assembly to make recommendations but requires the GA to refer the issue to the Security Council when an action is necessary.
The New Agenda for Peace needs to define what kinds of actions more clearly would need to be referred by the GA to the Security Council under Article 11.
In addition to the six potential areas for the New Agenda for Peace outlined by the Secretary-Genera in Our Common agenda, one setting out a systematic process through which Article 99 would be used more frequently and assertively by the Secretary-General is necessary. This could possibly take place through a monthly or quarterly review of the state of world peace, which the Secretary-General would present to joint sessions of the UN Security Council and the General Assembly, indicating the situations where Article 99 might apply, also as an early warning/preventive measure. If preventive diplomacy fails and a conflict ensues, the New Agenda should step-up diplomatic efforts to end hostilities including through different phases of due process leading up to mediation or other peaceful resolutions of the conflict. Benchmarks that trigger each of these phases should be clearly outlined by the Secretary-General in his reports to the Security Council and the General Assembly.
In sum, there are fair prospects for peace in Ukraine, through the process set in motion by the initiative of the African leaders, but the UN needs to step in to provide the authority and minimum guarantees required for due process in the settlement of the dispute in accordance with the general principles of international law. The New Agenda for Peace should identify and address the gaps that have led to the failure of the UN system to address the Russia-Ukraine war in an effective manner thus far.
22 June 2023